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TMI Blog2018 (8) TMI 2078X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has to still claim higher rate of interest, it may avail remedy before the Civil Court. The petition is admitted and moratorium is passed under sub-section (1) of Section 14 of the Code. - CP (IB) No. 136/Chd/Hry/2018 29.08.2018 - - - Dated:- 29-8-2018 - HON BLE MR. JUSTICE R.P.NAGRATH, MEMBER (JUDICIAL) AND HON BLE MR. PRADEEP R.SETHI, MEMBER (TECHNICAL) For the Petitioner : Mr. Rakesh Kumar, Advocate For the Respondent : Mr. Anand Chhibbar, Senior Advocate, Mr. Vaibhav Sahni, Advocate, Mr. Mast Ram, Resolution Professional JUDGMENT (ORAL) Per: R.P.Nagrath, Member (Judicial): This petition has been filed by M/s Ashok Kumar and Brothers, the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the Code ) for initiating Insolvency Resolution Process against the respondent-Corporate Debtor. The Operational Creditor is a proprietorship concern and Mr. Ashok Kumar is the Sole Proprietor. The application has been filed in Form-5, as prescribed in Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with the requisite documents which are at Page Nos. 268 to 277 of the paper book. The learned counsel for the petitioner submits that the Corrigendum was issued because in the earlier notice, the amount of interest was not added. This notice was sent by speed post as per postal receipt (Page 391 of the paper book) and delivered to the respondent-Corporate Debtor as per tracking report which is at Page No. 391 of the paper book. 7. There is also the affidavit of the sole proprietor of the Operational Creditor at Page No. 142 of the paper book, categorically stating that there is no dispute of the unpaid operational debt pending between the parties before the issuance of the demand notice in order to comply with the requirement of Section 9(3)(b) of the Code. 8. When the matter was listed on 25.05.2018, notice was directed to be issued to respondent-Corporate Debtor. The petitioner at the same time was also directed to file the ledger account of the Corporate Debtor maintained in the books of account of the petitioner upto 31.03.2017 with reconciliation, if any, with the ledger account filed along with the petition. 9. The petitioner filed the affidavit of compliance, vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Certificate of the Central Bank of India, an amount of ₹ 5,00,000/- was credited from the account of the respondent-Corporate Debtor in the account of the petitioner for the last time. Learned counsel for the petitioner referred to Page No. 25 of the account statement of the petitioner, maintained by the Central Bank of India, showing the last payment was received from the respondent on 04.04.2018. This is also the allegation of fact set up by the petitioner in the application form. With the filing of above bank certificates the petitioner is shown to have complied with the requirement of Section 9(3)(e) of the Code. 15. The amount of outstanding debt, which the petitioner has claimed to be in default is supported from the ledger account of the respondent, being maintained by the petitioner, which is attached as Annexure 2 with Additional Affidavit filed vide Diary No. 2429 dated 11.07.2018. The amount outstanding as on 31.06.2018 is ₹ 3,43,21,069/-, which is tallying with the statement made in Column No.I of Part IV of the application form. Apart from that, the petitioner has also filed copies of all the invoices under which the transactions between the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 20. Though the petitioner being the Operational Creditor is not obliged to propose the name of the Resolution Professional to be appointed as Interim Resolution Professional, but in the instant case, the petitioner has proposed the name of Mr. Mast Ram, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 24. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 25. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or pass an order for liquidation of corporate debtor under Section 33 as the case may be. 26. The matter be listed on 07.09.2018 for passing of the formal order of appointment of the Interim Resolution Professional. Copy of this order be communicated to both the parties. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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